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  • Writer's pictureEzra N. Goldman

Help! I got a DUI (drunk driving) charge!

Should I take the breath test?

This is a decision you may be asked to make when you are in the worst position to make it – a little woozy from a couple of shots. In Michigan, there are two breath tests: The PBT and the Datamaster (sometimes called a breathalyzer). Refusing a PBT is a civil infraction. It is a ticket, typically, $150. If you choose to refuse that, that is your option. Typically, your ticket for this can be reduced or dismissed as part of the larger resolution of your case. The Datamaster is a different story.

There is a pact between the Secretary of State and every Michigan driver. The deal is that they issue you a license and you agree to take the Datamaster when asked. If you refuse to take the Datamaster, your license will get suspended for a year. Therefore, refusal of the Datamaster makes sense in very few situations.

If you have a first offense drunk driving charge, it usually makes sense to take the Datamaster test. Even if convicted, you will be able to get a restricted driver’s license (exactly when depends on the charge of which you are convicted). Therefore, there is little to gain by refusing it. Also, if you refuse it, the police will likely obtain a search warrant to examine your blood. Once they do that, they will know your blood alcohol regardless.

Refusing the test makes sense in cases where your license is revoked anyway. If you have no license, you may have little to lose by refusing the test. Perhaps, the prosecutor will have less or worse evidence in your underlying drunk driving case if you don’t allow them to obtain this evidence. And, of course, your blood alcohol level will likely diminish during the time it takes for them to get a warrant and transport you to the hospital. Generally, people lose .015% of their blood alcohol in an hour. So, if you were .08, just above the limit, in an hour, you may well be 0.65. Many prosecutors would not charge someone with DUI for that alcohol level. So there are certain strategic instances where refusing the test makes sense. Generally, take the test.

I refused the test. Now what?

When you refuse the test, you are given a notice of a report by the officer to the Secretary of State and an appeal form. It is imperative that you request a hearing on this within 14 days – if you don’t, the secretary of state’s hearings division loses jurisdiction over the matter and will not give you a hearing.

I have heard of “refusal” cases where the officer never gives the client the hearing notice, thereby depriving him of the information that s/he has only 14 days to deal with this and the form that needs to be filed. The absence of the form is not a critical loss because those are available online. But the lack of information is something from which a defendant cannot recover unless he has good counsel.

Requesting the hearing is nothing like winning the hearing. A well prepared officer can easily prevail in such a hearing. But you have to go through it anyway - there is a degree of possibility that the officer will not attend and even if he does, he could fail to testify to one of the four things he has to say. Also the testimony that he gives could prove valuable in the defense of the underlying case. Most significantly, requesting the hearing stops the clock for about 30 days. In that interim, a skilled attorney can make a negotiation with the city prosecutor that might include resolving the refusal hearing. I do this all the time. If you're working with the right defense attorney and he is working with the right prosecutor, the refusal to take this test could wind up having no consequence to your license.

I lost my refusal hearing. Now what?

The Secretary of State's decision on your refusal is something that can it be appealed to the Circuit Court. The Circuit Court does have authority to give you a license in case of hardship. My experience is that these can be worked out rather than fought out, assuming the driving record is not too bad, aside from the underlying case. The biggest problem is that these matters take so long to work their way into the Circuit Court system, especially in some of the larger counties where the clerks are very slow to get things filed, that much of the one year suspension has already passed by the time your attorney gets a chance to work it out with an attorney general. And, of course, the expense of that appeal to the Circuit Court is something to consider. There are always legal options for people that can afford to use them.

Am I being charged with a felony?

The most common drunk driving offenses our misdemeanors are not felonies. However if you have two prior drunk driving misdemeanors, the third one can be charged as a felony. The three basic drunk driving misdemeanors can essentially be identified as small medium and large, depending on the blood alcohol level. In other words people that are .08 are generally charged with operating while visibly impaired. People that are .10 and more are charged with operating under the influence of liquor and people that are above .15 are charged with high BAC, which is sometimes known as “super drunk”. the difference between these charges is in the penalty to your license, the points, the fines, and the maximum jail.

Am I going to go to jail? I have never been in trouble before?

In most courts it is not likely that you will go to jail on a first time drunk driving offense. There are certain courts there are two put first timers in jail, for a brief period, and then experienced attorney can tell you whether you are facing a judge that is likely to do that or not. However, your odds of going to jail increase dramatically if you don't pay attention to your bond conditions. If the court tells you not to drink alcohol while you're on bond, or to test for alcohol, and you fail to obey those conditions, the judge may very well think that you're not taking the situation or the court's order seriously and may give you several days in jail just to shake you up. Drunk driving is the most common crime in Michigan. The instructions as to how and where to test are not complex. The people that don't comply are generally the people that don't want to comply or are physically unable to comply.

I am glad I didn’t refuse any tests. I was cooperative throughout. What will happen to me?

if you were and remain cooperative, you are likely to get probation as a sentence in a first time drug driving case. The Secretary of State is likely to suspend your license but is also likely to give you back a restricted license that will let you go to and from work period as indicated above, when you get that restricted license depends on which of the three drunk driving's you wind up with period if you get the lowest drunk driving, operating while visibly impaired, you will get a restricted license immediately. If you get one of the higher versions, you may not have a license for 30 or 60 days. If you have a prior alcohol related offence within seven years, the Secretary of State will revoke your license. No restricted license will be available.

What will happen to my CDL?

Discussions in the previous paragraphs about licenses do not pertain to commercial drivers licenses. If you get a drunk driving offence, expect your CDL to be suspended.

What about my CPL?

You probably don't need a detailed explanation as to why drunk driving is incompatible with having a gun. When the gun board realizes that you were convicted of an alcohol related crime, they will suspend your concealed pistols license.

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